Citation Nr: 1435529
Decision Date: 08/08/14 Archive Date: 08/20/14
DOCKET NO. 09-48 063 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUES
1. Entitlement to an acquired psychiatric disability other than PTSD.
2. Entitlement to service connection for migraines, to include a secondary to service connected mixed anxiety-depressive disorder.
REPRESENTATION
Appellant represented by: Connecticut Department of Veterans Affairs
ATTORNEY FOR THE BOARD
R. Williams, Counsel
INTRODUCTION
The Veteran served on active duty from September 2002 to October 2005. He also had service in the Army Reserve from December 1999 to May 2002.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision, by the Hartford, Connecticut, Regional Office (RO), which, inter alia, granted service connection for pseudofolliculitis, evaluated as 10 percent disabling, effective January 6, 2006, and denied service connection for PTSD and migraines.
The Veteran testified at a hearing before a Decision Review Officer (DRO) in April 2010. A transcript of that hearing has been associated with the claims folder. He also requested, and was scheduled for, a hearing before a Veterans Law Judge at the RO in June 2012; notice of such was mailed to him at his address of record. The Veteran failed to report for the Board hearing without explanation or request to reschedule. The Board hearing request has been considered withdrawn. See 38 C.F.R. § 20.704.
In September 2012 the Board bifurcated the claim for PTSD to include a claim for PTSD and a claim for an acquired psychiatric disability other than PTSD. At that time the Board remanded the claims for an acquired psychiatric disability other than PTSD and migraines for further evidentiary development.
The January 2013 VA headaches DBQ reflects that that the Veteran reported that when he is anxious, the headache pain is increased. Therefore, the appellant has raised a new theory of entitlement for his headache disorder, secondary service connection. As such, the headache-disorder issue is as stated on the title page.
The issue of entitlement to service connection for migraines is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
Service connection for mixed anxiety depressive disorder was granted in a March 2013 rating decision, and there is no longer a case or controversy as to the issue pertaining to entitlement to service connection for an acquired psychiatric disability other than PTSD.
CONCLUSION OF LAW
The Board lacks jurisdiction over the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD because that issue has been granted and rendered moot. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed NOD in writing, and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105, 38 C.F.R. § 21.200.
The Veteran's claim for service connection for an acquired psychiatric disability other than PTSD was granted in a rating decision issued by the AOJ in March 2013. The Veteran did not perfect an appeal with regard to the evaluation assigned for mixed anxiety-depressive disorder. Therefore, the Board lacks jurisdiction over the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD because that issue has been granted and rendered moot on appeal. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202.
ORDER
The appeal as to the issue of entitlement to service connection for an acquired psychiatric disability other than PTSD is moot, and the issue is dismissed for lack of jurisdiction.
REMAND
The Veteran contends that he is entitled to service connection for a headache disorder. A remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
As noted in the introduction section of this decision, during the January 2013 VA Disability Benefit Questionnaires (DBQ) for headaches, the Veteran indicated in his headaches may be related to his now service-connected mixed anxiety-depressive disorder. He specifically noted that when he is anxious, the headache pain is increased. The January 2013 VA DBQ reports does not reflect that any consideration of his claim on a secondary basis was ever undertaken. The AOJ also has not considered this theory of entitlement, nor has it provided the appellant notice of the information and evidence needed to substantiate and complete a claim of entitlement to secondary service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C.A. §§ 5103, 5103A. In addition, the Veteran's claims file should be referred to the January 2013 VA examiner for an opinion as to whether it is at least as likely as not that the Veteran's current headache disorder is caused or aggravated by to his service-connected mixed anxiety-depressive disorder. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
Accordingly, the case is REMANDED for the following actions:
1. Provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection for a headache disorder secondary to a service connected disorder, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.
2. Refer the Veteran's entire claims file (i.e., the paper claims file and any records contained in Virtual VA, VBMS, CAPRI, and AMIE) to the VA examiner who performed the Veteran's VA headaches DBQ of January 2013. A copy of this remand must also be provided to the examiner and the examination report should reflect review of these items. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran's current headache disorder is caused by his service-connected mixed anxiety-depressive disorder.
If it is determined that the Veteran's headache disability is not due to his mixed anxiety-depressive disorder, the examiner is asked to opine as to whether it is at least as likely as not that the Veteran's current headache disorder has been permanently aggravated beyond its natural progression as a result of his service-connected mixed anxiety-depressive disorder.
A complete rationale must be provided for all opinions offered and a new examination is not required unless deemed to be by the assigned examiner.
3. Then readjudicate the claim remaining on appeal in light of all evidence of record. If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs